FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DEBENHAMS TALLAGHT (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MANDATE DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Sunday working.
BACKGROUND:
2. Debenhams has been trading in Ireland since 1996. In September 2006 Debenhams acquired the Roches Stores business bringing the total to 11 department stores across the country. The acquisition was treated as a Transfer within the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and as agreed between Mandate and Roches in August 2006 under the aegis of the LRC. Since then the Company have complied with its obligations under the Regulations and the LRC Agreement of August 2006.
When Sunday working was introduced in the early 90's it was paid on overtime and became sought after by most employees. In Tallaght employees with the longest service "seniority" in the store were offered first refusal for this overtime. When Debenhams acquired the store the practice of giving first refusal for Sunday work to the most senior ex-Roches Stores staff was maintained and in 2007 this was agreed to apply to 25 most senior employees.
A new Collective Agreement known as the 'Spring Agreement' was concluded between Mandate and Debenhams in 2010 where no reference was made to the Sunday overtime rule. A voluntary redundancy process took place as part of the restructuring and about twenty of the twenty-five most senior ex-Roches Stores staff availed of the redundancy package. This left about 5 of the original twenty-five still in employment.
On 2nd July 2010 the Company put forward new proposals to resolve the issue of Sunday working.
The matter could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 5th July 2011, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 26th October 2011.
UNION'S ARGUMENTS:
3. 1. The Union maintains that the Transfer of Undertakings encompassed both in-house agreements and custom and practice. Because of this the practice of Sunday overtime being rostered on the basis of seniority was maintained as an entitlement.
2. The Union contends that the Company took advantage of the 'Spring Agreement', which involved many senior staff exiting the Company to bring to an end the allocation of Sunday overtime on a seniority basis, claiming that the twenty-five people mentioned in the Agreement were named people.
3. The Union maintains that the current tranch of senior staff who transferred from Roches are now being denied the Sunday overtime which it maintains they were entitled to arising from the Transfer of Undertakings Regulations.
COMPANY'S ARGUMENTS:
4. 1. Following the 'Spring Agreement' the dispute on Sunday working changed its focus and centered on maintaining a practice for people remaining that had not regularly worked Sundays since 2007 as a result of the more senior colleagues availing of the overtime. The Company maintains it could not accede to this argument as it would re-instate costs and be counter to the 'Spring Agreement' initiative.
2. The Company maintains that it has to realistically address commercial and competitive dilemmas and that it is unrealistic to roster staff on Sunday overtime when that is not required.
3. The Company contends that the Union claim as is understood would in principle be seeking compensation for not working. It is simply not possible to award compensation in such circumstances.
RECOMMENDATION:
The matter before the Court concerns the Union’s claim on behalf of workers employed at the Company’s Tallaght store. The Union submitted that the Company was in breach of its agreement to roster Sunday overtime on the basis of seniority, when it unilaterally abolished the practice in 2010.
The Company submitted that the agreement was superseded by events and most of those workers who held such an entitlement had left the Company as part of its Restructuring Agreement in 2010. Therefore, it wished to introduce a consistent approach to all its stores and allocate overtime on an equitable basis to all employees.
Having considered the submissions of both sides the Court recommends that both parties should enter into meaningful discussions with a view to reaching an agreement on Sunday working which will reflect the current business realities facing the Company. The Court recommends that these discussions should commence with immediate effect and be completed by no later than 16th November 2011.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd November 2011______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.